Editorial: Tsarnaev and the death penalty

Monday

Feb 3, 2014 at 11:49 AMFeb 3, 2014 at 11:49 AM

Nine months after the Boston Marathon bombings, emotions may still be too raw for a full-throated debate over Attorney General Eric Holder’s decision to seek the death penalty for the sole surviving suspect in the case. Few people want to be accused of having sympathy for Dzhokhar Tsarnaev.

But there are legal and constitutional questions raised by the prosecution that ought to be considered in the courts, in Congress and in the nation’s law schools.

The main question relates to jurisdiction. By tradition and precedent, federal prosecutions are for crimes committed on federal property, crimes against the federal government, crimes involving interstate flight or interstate commerce and federal crimes that have no state equivalent. In recent decades, the federal criminal code has expanded well beyond those bounds, resulting in considerable overlap between state and federal offenses.

The actual crime for which Tsarnaev will be tried provides an example: “using and conspiring to use a weapon of mass destruction resulting in death.” Under state law, there’s a simpler legal term for what he’s charged with doing: first-degree murder.

The crimes committed last April 15 were certainly heinous, with three people killed and more than 260 wounded. An MIT police officer was killed later that week, allegedly by the Tsarnaev brothers. But these crimes were committed on state streets, not on federal property. There is no evidence we’ve seen indicating a foreign plot, the crossing of state lines or interstate commerce. These are crimes allegedly committed by Massachusetts residents against Massachusetts residents. Why not charge Tsarnaev under Massachusetts law?

Two reasons have been suggested. Tsarnaev’s crimes smell of terrorism, largely because of the defendant’s religion and politics. Second, the federal charges carry the possibility of the death penalty, and Massachusetts law does not.

This decision raises questions of federalism. Massachusetts does not have the death penalty because its elected leaders, reflecting the view of the citizenry, have repeatedly rejected it. Shouldn’t crimes committed against the people of Massachusetts be punished in the way Massachusetts has prescribed?

One answer is that the Marathon bombings, because of their allegedly political motivation, were crimes against all the people of the United States, and should be prosecuted by the national, not the state, government. Holder’s statement justifying capital punishment in this case charged Tsarnaev with “betrayal of the United States.” That phrase may lack legal standing, but it carries an emotional resonance that, we expect, is good enough for most people.